Citation Nr: 0418502
Decision Date: 07/12/04 Archive Date: 07/27/04
DOCKET NO. 00-03 771 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an initial compensable rating for
hypertension with hyperlipidemia.
2. Entitlement to an initial compensable rating for
hemorrhoids.
3. Entitlement to an initial rating in excess of 10 percent
for tinea pedis with onychomycosis of toenails.
4. Entitlement to an initial rating in excess of 20 percent
for bursitis or tendonitis of the hips, shoulders, elbows,
right knee and left ankle.
5. Entitlement to an initial compensable rating for
Schamberg's purpura with hyperpigmentation.
6. Entitlement to an initial rating in excess of 20 percent
for chronic thoracolumbosacral strain with spondylosis
deformans.
7. Entitlement to an initial compensable rating for
residuals of burns on the left neck and shoulder.
8. Entitlement to an initial rating in excess of 10 percent
for diabetes mellitus prior to June 5, 1998, and in excess of
20 percent from June 5, 1998.
9. Entitlement to service connection for a gastrointestinal
disability, to include gastroesophageal reflux disease.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
A. Shawkey, Counsel
INTRODUCTION
The veteran served on active duty from March 1979 to March
1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1999 determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas. Four of the issues arising out of the November
1999 determination (i.e., entitlement to service connection
for a liver disorder, right eye epidermic
keratoconjunctivitis, recurrent upper respiratory infections
and chronic urinary tract infection) were the subjects of a
separate Board decision in August 2002. Also in August 2002,
the Board undertook additional development of the remaining
issues arising out of the November 1999 determination
pursuant to 38 C.F.R. § 19.9(a)(2) (2002) (a regulation which
has since been invalidated), and remanded the matter back to
the Board in May 2003 in compliance with due process
requirements. See Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
The record reflects that the veteran provided testimony at a
videoconference hearing before a Veterans Law Judge in
December 2000; however, the audiotape of that hearing was
lost, and when the veteran was advised of this fact, he
requested a Travel Board hearing. Accordingly, the Board
remanded this case in May 2001 for the veteran to be
scheduled for such a hearing. However, in July 2002, the
veteran withdrew his hearing request. 38 C.F.R. § 20.704(e).
The issues of entitlement to service connection for a
gastrointestinal disability, to include gastroesophageal
reflux disease, and an initial increased evaluation for
tendonitis of the left ankle, are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Since the effective date of the grant of service
connection, the veteran's hypertension is not manifested by
diastolic pressure predominantly 100 or more, or, systolic
pressure predominately 160 or more; continuous medication is
not required.
2. Since the effective date of the grant of service
connection, the veteran's hemorrhoid disability is no more
than moderate in degree and is not productive of large or
thrombotic hemorrhoids that are irreducible and have
excessive redundant tissue, evidencing frequent occurrences.
3. Since the date of the grant of service connection, the
veteran's tinea pedis with onychomycosis of the nails has not
been manifested by exudation or itching constant, extensive
lesions or marked disfigurement; nor has it been manifested
by an area covering 20 to 40 percent of the entire body or
more than 40 percent of exposed areas affected, and does not
involve systemic therapy.
4. Since the effective date of the grant of service
connection, the veteran's right hip disability is manifested
by some limitation of motion with functional loss due to pain
and during flare-ups.
5. Since the effective date of the grant of service
connection, the veteran's left hip disability is manifested
by limitation of rotation, cannot toe out more than 15
degrees, with functional loss due to pain and during flare-
ups.
6. Since the effective date of the grant of service
connection, the veteran's right shoulder disability is
manifested by some limitation of motion with functional loss
due to pain and during flare-ups.
7. Since the effective date of the grant of service
connection, the veteran's left shoulder disability is
manifested by some limitation of motion with functional loss
due to pain and during flare-ups.
8. Since the effective date of the grant of service
connection, the veteran's right elbow disability is
manifested by some limitation of motion with functional loss
due to pain and during flare-ups.
9. Since the effective date of the grant of service
connection, the veteran's left elbow disability is manifested
by some limitation of motion with functional loss due to pain
and during flare-ups.
10. Since the effective date of the grant of service
connection, the veteran's right knee disability is manifested
by some limitation of motion with functional loss due to pain
and during flare-ups.
11. Since the effective date of the grant of service
connection, the veteran's Schamberg's purpura with
hyperpigmentation has not been manifested by exfoliation,
exudation or itching; nor does it cover at least 5 percent,
but less than 20 percent of the entire body, or at least 5
percent but less than 20 percent, or exposed areas affected;
it does not require intermittent systemic therapy.
12. Since the effective date of the grant of service
connection, the veteran's low back disability has been
manifested by no more than moderate limitation of motion to
include functional loss caused by pain and during flare-ups;
it is not manifested by forward flexion of the thoracolumbar
spine 30 degrees or less or by ankylosis.
13. Since the effective date of the grant of service
connection, the veteran's residual burn scars to the left
neck and shoulder do not cover an area of 144 square inches
or greater and are not tender, painful, ulcerated, unstable
or deep; nor are they adherent, or associated with any
underlying soft tissue damage; medical examination found no
functional limitation or limited motion attributable to the
scars.
14. Since the effective date of service connection to June
5, 1998, the veteran's diabetes mellitus did not require
insulin or an oral hypoglycemic agent; nor did this
disability require insulin and regulation of activities from
June 5, 1998.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable rating for
hypertension with hyperlipidemia have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3,
4.7, 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997, 2003).
2. The criteria for an initial compensable rating for
hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic
Code 7336 (2003).
3. The criteria for an initial rating in excess of 10
percent for tinea pedis with onychomycosis of toenails have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800-
7806, 7813 (before and since August 30, 2002).
4. The criteria for an initial compensable rating, to 10
percent, for bursitis or tendonitis of the right hip have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5251-
5255 (2003).
5. The criteria for an initial compensable rating, to 20
percent, for bursitis or tendonitis of the left hip have been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5251-
5255 (2003).
6. The criteria for an initial compensable rating, to 20
percent, for bursitis or tendonitis of the right shoulder
have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic
Code 5201 (2003).
7. The criteria for an initial compensable rating, to 20
percent, for bursitis or tendonitis of the left shoulder have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201
(2003).
8. The criteria for an initial compensable rating, to 10
percent, for bursitis or tendonitis of the right elbow have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5206
(2003).
9. The criteria for an initial compensable rating, to 10
percent, for bursitis or tendonitis of the left elbow have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5206
(2003).
10. The criteria for an initial compensable rating, to 10
percent, for bursitis or tendonitis of the right knee have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260,
5261 (2003).
11. The criteria for an initial compensable rating for
Schamberg's purpura have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Part 4,
Diagnostic Codes 7800-7805 (before and since August 30,
2002).
12. The criteria for an initial rating in excess of 20
percent for chronic thoracolumbar strain with spondylosis
deformans have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a,
Diagnostic Codes 5292 and 5295 (2002) and Diagnostic Code
5237 (2003).
13. The criteria for an initial compensable rating for
residual burn scars to the left neck and shoulder have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (before
and since August 30, 2002).
14. The criteria for a rating in excess of 10 percent for
diabetes mellitus prior to June 5, 1998, and in excess of 20
percent from June 5, 1998, have not been met. 38 U.S.C.A. §§
1155, 7104 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119,
Diagnostic Code 7913 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002).
Among other things, this law redefines the obligations of VA
with respect to the duty to assist, and supersedes the
decision of the United States Court of Appeals for Veterans
Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999),
withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet.
App. Nov. 6, 2000) (per curiam order), which had held that VA
cannot assist in the development of a claim that was not well
grounded.
This liberalizing law, which is applicable to this claim, and
its implementing regulations (codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a)) essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)). As
explained below, the Board finds that all relevant evidence
has been obtained with regard to the veteran's claims and
that the requirements of the VCAA have been satisfied.
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Additionally, a VCAA notice letter consistent with
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." Id. at
422.
In the present case, a substantially complete application
seeking entitlement to service connection for multiple claims
was received in May 1997. Thereafter, in a rating decision
dated in November 1999 the RO granted service connection for
the claims (with the exception of the claim for service
connection for a gastrointestinal disability being remanded
herein.) Only after that rating action was promulgated did
the RO in June 2001, provide notice to the claimant regarding
submitting additional evidence in support of his claims,
advising as to what information and evidence must be
submitted by the claimant, what information and evidence will
be obtained by VA, and the need for the claimant to submit
any evidence in his possession that pertains to the claims.
The Board notes that by way of the November 1999 rating
Decision, November 2001 statement of the case and January
2004 supplemental statement of the case, the RO advised the
veteran and his representative of the basic laws and
regulations governing his claims and the bases for the denial
of higher initial disability ratings of the claims as well as
his service connection claim for a gastrointestinal
disability.
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the appellant in June 2001 was
not given prior to the first AOJ adjudication of the claims,
the RO granted the benefit sought on appeal, i.e. the claims
for service connection were granted. It was only after the
veteran disagreed with the disability ratings assigned did
the RO notify the veteran of the need for additional
evidence. After the notice was provided, the case was
readjudicated and a Statement of the Case (SOC) was provided
to the appellant. The claimant has been provided with every
opportunity to submit evidence and argument in support of his
claims, and to respond to VA notices. Thus, the Board finds
that the appellant was not prejudiced by the timing of the
RO's notice.
The Board also finds that all necessary development has been
accomplished. The RO has made reasonable and appropriate
efforts to assist the appellant in obtaining the evidence
necessary to substantiate his claims. Moreover, the
appellant has been afforded the benefit of VA examinations
during the appeal period, and was given the opportunity to
attend a hearing. In view of these actions, the Board finds
that VA has fulfilled its duty to assist the veteran. During
the course of the appeal, the veteran identified no
additional sources of evidence, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claims that has not
been obtained. Hence, no further notice or assistance to the
veteran is required to fulfill VA's duty to assist him in the
development of the claims. Smith v. Gober, 14 Vet. App. 227
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Accordingly, appellate review may proceed without prejudice
to the veteran. See Bernard v. Brown, 4 Vet. App. 384
(1993).
II. Analysis
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38C.F.R. Part 4. Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. When after careful consideration of all procurable
and assembled data, a reasonable doubt arises regarding the
degree of disability such doubt will be resolved in favor of
the claimant. 38 C.F.R. § 4.3.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the
instant case, the appeal arises from the original assignment
of disability evaluations following an award of service
connection, the severity of the disabilities at issue is to
be considered during the entire period from the initial
assignment of the disability rating to the present time. See
Fenderson v. West, 12 Vet. App. 119 (1999).
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
Hypertension
During an April 1998 VA examination, the veteran said that he
had never been prescribed medication for his hypertension or
for his chest pain. He said the chest pain which occurred at
least once or twice a month lasted anywhere from one to five
minutes and was localized on the left side. The pain
occurred sometimes at rest and other times on minimal
exertion. There was no radiation of chest pain to the
veteran's jaws or the left upper extremity and the pain just
subsided on its own. On examination the veteran's heart rate
was 72 per minute. Blood pressure readings were 140
(systolic)/90 (diastolic) on standing and 142/92 on sitting.
Supine blood pressure was 144/94. Blood test results
revealed high cholesterol and high triglycerides. The
veteran was diagnosed as having essential hypertension and
hyperlipidemia.
VA outpatient treatment records dated from 1998 to 2001
reflect blood pressure readings with systolic readings of 147
or less and diastolic readings of 97 or less.
On examination in April 2003, the veteran said he was not
taking any medication for hypertension or high cholesterol.
It is noted that his cholesterol medication was stopped after
a recent motor vehicle accident (in 2002) and multiple
surgeries. The examiner said that based on a review of the
veteran's claims file and history of present illness as
provided by the veteran, the veteran never really had
hypertension. He opined that the veteran probably had a
condition called reactive high blood pressure, but not
hypertension because "basically when patients have
hypertension they require treatment." Findings revealed
sitting blood pressure of 108/85 with a heart rate of 94 per
minute. The examiner was unable to perform blood pressure on
standing or lying as the veteran was in a wheelchair. He
diagnosed the veteran as having hypertension, not found. As
to the condition of hyperlipidemia, the examination report
indicates that the veteran refused any lab tests so this
condition could not be evaluated.
On January 12, 1998, the rating schedule for determining the
disability evaluations to be assigned for diseases of the
heart was changed. See 62 FR 65207-65244. This involved
changes to the criteria regarding hypertensive vascular
disease, with consideration now given to systolic blood
pressure readings as opposed to just diastolic readings.
38 C.F.R. § 4.104, Diagnostic Code 7101 (1997, 2001). Since
the criteria for diastolic readings have remained the same in
both versions of the rating schedule, with the added criteria
for systolic readings in 1998, there is no prejudice to the
veteran in evaluating this claim under the new criteria. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
Specifically, a 10 percent rating under Diagnostic Code 7101
requires diastolic pressure predominantly 100 or more, or;
systolic pressure predominantly 160 or more, or; minimum
evaluation for an individual with a history of diastolic
pressure predominantly 100 or more who requires continuous
medication for control. A 20 percent rating requires
diastolic pressure that is predominately 110 or more, or;
systolic pressure predominantly 200 or more. For a 40
percent rating, diastolic pressure must be predominantly 120
or more. A 60 percent rating requires that diastolic
pressure be predominantly 130 or more. Id.
The veteran's diastolic blood pressure readings in this case
have all been under 100 with the highest reading of 97 noted
on VA outpatient records in May 2000 and February 2001. As
for systolic readings, these readings have all been under
160, with the highest reading of 147 noted on VA outpatient
records dated in February 1999, May 2000 and February 2001.
At the veteran's most recent examination in April 2003, his
sitting blood pressure was 108/85. Both the 1998 and 2003 VA
examiners indicated that the veteran does not take medication
for hypertension. In fact, the April 2003 VA examiner said
that based on the veteran's claims file and reported history,
he never really had hypertension, but probably had a
condition called reactive high blood pressure.
In short, the evidence simply does not support the criteria
for a compensable rating for hypertension under Diagnostic
Code 7101. That is, the veteran's diastolic readings from
the date of the grant of service connection have all been
under 110, his systolic readings have been well under 160,
and continuous medication has not been required for control.
Id.
As the preponderance of the evidence is against a compensable
rating for the veteran's service-connected hypertension with
hyperlipidemia from the date of the grant of service
connection, the benefit-of-the-doubt rule does not apply and
the claim must be denied. 38 U.S.C.A. § 5107(b).
Hemorrhoids
The medical evidence regarding the veteran's hemorrhoids is
scant and includes a VA contract examination performed in
June 1998. The examination was performed by a
gastroenterologist who said that the veteran had no history
of hemorrhoids, but had rectal bleeding one to two times a
week with bright red blood on paper, and no rectal pain. He
noted that rectal examination revealed no external
hemorrhoids, but was positive for hemorrhoids. He gave an
impression of probable internal hemorrhoids (rectal bleed).
Medical records dated in March 2002 from William Beaumont
Army Medical Center show that the veteran was involved in a
motorcycle accident and sustained a severe posterior rectal
tear with extensive loss of soft tissue. He was diagnosed as
having 90% anal complex disruption and 30cm by 30cm severe
peroneal, rectal, and gluteal degloving injury.
In April 2003, the veteran underwent a VA examination and
reported that due to the motorcycle accident he destroyed his
rectum and part of his left hip and buttocks. The
examination report states that a rectal examination was not
performed due to the veteran's medical history and the
veteran's report of having just had surgeries on his rectum
and of having no hemorrhoids.
External or internal hemorrhoids which are mild or moderate
warrant a zero percent evaluation. Large or thrombotic
hemorrhoids that are irreducible and have excessive redundant
tissue, evidencing frequent recurrences, are rated 10
percent. Hemorrhoids with persistent bleeding and with
secondary anemia, or with fissures, warrant a 20 percent
rating. 38 C.F.R. § 4.114, Code 7336.
The above-noted evidence does not warrant a compensable
rating, either at the 10 or 20 percent level for hemorrhoids
since the date of the grant of service connection. Regarding
the criteria for a 10 percent rating, there is simply no
evidence of large or thrombotic hemorrhoids that are
irreducible and have excessive redundant tissue. It appears
from the June 1998 examination report that the examiner did
not actually find any hemorrhoids on examination, but
assessed the veteran as having probable internal hemorrhoids
due to his history of rectal bleeding. Thus, even assuming
that the veteran's rectal bleeding was in fact caused by
internal hemorrhoids, absent evidence of secondary anemia or
fissures, the criteria for a 20 percent rating have not been
met.
It does not appear that the veteran has had problems with
hemorrhoids since his motorcycle accident in March 2002 and
prior to that date this disability was no more than moderate
in degree based on the June 1998 examination findings.
38 C.F.R. § 4.114, Code 7336.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the assignment of an
initial compensable schedular rating for the veteran's
service-connected hemorrhoids. As the preponderance of the
evidence is against the claim, the benefit-of-the-doubt rule
does not apply and the claim must be denied. 38 U.S.C.A.
§ 5107(b).
Tinea Pedis with Onychomycosis of the Nails
At a June 1998 VA dermatology examination, the veteran
complained of fungus of the toenails and fingernails and
reported a fungal nail infection since 1982. The examination
report does not include specific examination findings, but
does contain a diagnosis of onychomycosis tinea pedis and
shows prescribed treatment for the condition in the form of
medication.
VA outpatient records from the podiatry clinic show that the
veteran presented for diabetic foot care in February 1999.
The veteran complained of painful tichiness on both feet. He
said he had been using all kinds of ointments for his foot
condition but it was always the same. He denied a history of
infection or ulceration of his feet. He also reported a
tingling sensation in his feet. On examination the nails on
both feet were elongated. The dorsal and plantar aspects of
the digits 2 and 3, the medial aspect of both heels and the
plantar aspect of the right foot revealed dry scaly skin that
was slightly erythemous. The skin was rough. There was no
active bleeding and no other active lesions noted. Epicritic
sensations were grossly intact and symmetrical. Orthopedic
findings were unremarkable. The veteran was assessed as
having chronic tinea pedis and was prescribed medication.
Outpatient findings in January 2000 revealed that the nails
on both feet were elongated. The dorsal and plantar aspect
of the digits 2 and 3, the medial aspect of both heels, and
the plantar aspect of the right foot had dry scaly skin that
was slightly erthematous. There was no active bleeding and
no other active skin lesion noted. The veteran was diagnosed
as having chronic tinea pedis and was prescribed internal and
topical medication. At a follow-up visit in February 2000,
the veteran reported that his feet had improved some. He had
decreased dry scaly skin and a decrease in erythema. There
were no other active skin lesions noted.
In July, August and September 2000, the veteran presented to
a VA podiatry outpatient clinic for diabetic foot care. His
primary complaint regarded ingrown toenails on both big toes
that had been present for a while and was getting worse.
Findings showed that the nails of both feet were elongated
and the medial and lateral borders of both Hallux toenails
were incurvated. There was no erythema, no swelling, no pus,
and no "s/s" of infection found. There were no active
lesions. The veteran was assessed as having noninsulin-
dependent diabetes mellitus and onychocryptosis hallux,
bilateral. During this period the veteran underwent
permanent nail avulsion, medial and lateral borders.
During an outpatient visit for diabetic foot care in January
2001, the veteran complained that his feet hurt and were
always cold. He also said that his feet perspired a lot.
Findings revealed that the nails of both feet were elongated.
There were no signs of ingrown toenails and no active skin
lesions noted. Neurology and orthopedic findings were
unremarkable. The veteran was assessed as having noninsulin-
dependent diabetes mellitus and hyperdrosis bilaterally. The
veteran was prescribed topical medication for both feet.
Dermatological findings in February 2001 show that the
veteran's nails on both feet were normal in appearance and
there were no active skin lesions or ulceration. He was
assessed as having noninsular dependent diabetes mellitus.
In August 2003, the veteran underwent a VA dermatology
examination where he reported that he had been treated for
athlete's foot for many years with some improvement. On
examination the veteran had erythema and maceration between
the toes. His toenails were "rather fine". No suspicious
lesion was seen. The examiner said that the veteran had
tinea pedis.
By regulatory amendment effective August 30, 2002,
substantive changes were made to the schedular criteria for
evaluation of skin diseases, as set forth in 38 C.F.R.
§ 4.118, Diagnostic Codes 7800-7833; 67 Fed. Reg. 49596-
49599, July 31, 2002. The RO has considered both versions of
the criteria with respect to this claim; thus there is no
prejudice to the veteran in the Board's consideration of both
the old and new criteria. See Bernard v. Brown, 4 Vet. App.
384 (1993).
The veteran's service-connected tinea pedis with
onychomycosis of the nails is currently evaluated as 10
percent disabling under 38 C.F.R. § 4.118, Diagnostic Codes
7806, 7813, for eczema. Under the former criteria for
eczema, a 10 percent evaluation requires exfoliation,
exudation or itching if involving an exposed surface or
extensive area. A 30 percent rating is warranted for eczema
with exudation or itching constant, extensive lesions, or
marked disfigurement. A 50 percent evaluation requires
ulceration or extensive exfoliation or crusting, and systemic
or nervous manifestations, or exceptionally repugnant.
38 C.F.R. § 4.118, Diagnostic Code 7806.
Under the revised rating schedule, dermatophytosis (to
include tinea pedis) is to be rated as disfigurement of the
head, face or neck (DC 7800), scars (DC's 7801, 7802, 7803,
7804 or 7805) or dermatitis (DC 7806), depending on the
predominant disability.
Under the new version of Diagnostic Code 7806 for dermatitis,
a 10 percent rating is warranted with at least 5 percent, but
less than 20 percent, of the entire body, or at least 5
percent, but less than 20 percent, of exposed areas affected,
or; intermittent systemic therapy such as corticosteroids or
other immunosuppressive drugs is required for a total
duration of less than six weeks during the past 12-month
period. A 30 percent rating is warranted when 20 to 40
percent of the entire body or 20 to 40 percent of exposed
areas is affected, or; systemic therapy such as
corticosteroids or other immunosuppressive drugs is required
for a total duration of six weeks or more, but not
constantly, during the past 12-month period. With more than
40 percent of the entire body or more than 40 percent of
exposed areas affected, or; with constant or near-constant
systemic therapy such as corticosteroids or other
immunosuppressive drugs required during the past 12-month
period, a 60 percent rating is assigned.
Turning to the old criteria first, the veteran's tinea pedis
with onychomycosis of the nail is not productive of exudation
or itching that is constant; nor is there evidence of
extensive lesions or marked disfigurement. Both the June
1998 and August 2003 VA dermatology examination reports, as
well as VA outpatient treatment records from 1999 to 2001,
are devoid of complaints of itching or exudation or findings
of same. Moreover, these records do not show the presence of
active lesions.
Under the new criteria, the veteran would also be rated under
the criteria for dermatitis (DC 7806) as the predominant
disability since the criteria for disfigurement of the head,
face or neck (DC 7800) does not apply and there is no
evidence of scarring from this disability (DC 7801-7805).
See DC 7813. The veteran's tinea pedis likewise does not
meet the criteria for the next higher, 30 percent, level
since the disability does not affect 20 to 40 percent of the
entire body or 20 to 40 percent of exposure areas affected,
nor is systemic therapy required.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the assignment of an
initial schedular rating in excess of 10 percent for the
veteran's service-connected tinea pedis with onchymosis of
the nails. As the preponderance of the evidence is against
the claim, the benefit-of-the-doubt rule does not apply and
the claim must be denied. 38 U.S.C.A. § 5107(b).
Bursitis/Tendonitis
The veteran's service-connected bursitis or tendonitis of the
hips, shoulders, elbows, and right knee are rated by analogy
to Diagnostic Code 5003 for degenerative arthritis. Under
this code, degenerative arthritis established by x-ray
findings will be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved. When, however, the limitation of motion
of the specific joint or joints involved is noncompensable
under the appropriate diagnostic codes a rating of 10 percent
is for application for each such major joint or group of
minor joints affected by limitation of motion. Limitation of
motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion. In the absence of limitation of motion, a 20 percent
rating is warranted with x-ray evidence of involvement of 2
or more major joints or two or more minor joint groups, with
occasional incapacitating exacerbations. A 10 percent rating
is assigned with x-ray evidence of involvement of 2 or more
major joints or 2 or more minor joint groups. These ratings
are not to be combined with ratings based on limitation of
motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2003).
In this case, the Board finds it appropriate to rate each
joint under the appropriate limitation of motion code(s) in
view of examination findings showing limitation of motion in
some of the joints as well as objective evidence of painful
motion.
When evaluating musculoskeletal disabilities under the
limitation of motion codes, the VA may, in addition to
applying schedular criteria, consider granting a higher
rating in cases in which functional loss due to pain,
weakness, excess fatigability, or incoordination is
demonstrated, and those factors are not contemplated in the
relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59;
DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).
Hips
During an April 1998 VA examination, the veteran complained
of pain in both hips once or twice per month. He said the
pain lasted all day and he was prescribed Motrin for the
pain. He reported increased pain on prolonged standing,
walking, sitting or going up and down stairs. Examination of
the right hip revealed flexion to 120 degrees and abduction
to 30 degrees. Right hip external rotation was to 90 degrees
and internal rotation was to 10 degrees. Pain began at 130
degrees of flexion and ended at 120 degrees. It also began
at 40 degrees of abduction and ended at 30 degrees. In the
left hip, flexion was to 110 degrees and abduction was to 20
degrees. Left hip external rotation was to 10 degrees and
internal rotation was to 5 degrees. Pain began at 120
degrees of flexion and ended at 110 degrees. It also began
at 30 degrees abduction and denied at 20 degrees. There was
visible pain manifested in both hips on motion, and an
estimated 25 degrees less range of motion in each hip during
flare-ups. There were no gait or weight-bearing
abnormalities in the hips and no deformity or ankylosis. X-
rays were negative. The veteran was diagnosed as having
chronic bursitis in both hips.
Hospital records from the William Army Beaumont Army Medical
Center show that the veteran sustained multiple trauma due to
a motorcycle accident in March 2002, including a left femur
transtrochanteric fracture. This was treated by internal
fixation and healing.
The veteran complained of hip pain during an April 2003 VA
examination. The examiner noted that the veteran was in a
wheelchair and that his non-ambulatory status limited
adequate testing of range of motion of his hips. He stated
that the veteran had 110 degrees flexion in each hip. He
said the veteran had a severely painful left hip and that it
was impossible to evaluate the contribution of his pain that
any service-connected condition might pose. He also said
that he found no evidence that the veteran ever had bursitis
or tendonitis of the hips.
Pursuant to Diagnostic Code 5251 for limitation of extension
of the thigh, a maximum 10 percent rating is assigned for
extension limited to 5 degrees.
Under Diagnostic Code 5252 for limitation of flexion of the
thigh, a 10 percent evaluation is warranted for flexion
limited to 45 degrees, a 20 percent evaluation is warranted
for flexion limited to 30 degrees and a 30 percent evaluation
is warranted for flexion limited to 20 degrees. For a 40
percent evaluation, flexion must be limited to 10 degrees.
Under Diagnostic Code 5253 for impairment of the thigh, a 10
percent evaluation is warranted for limitation of rotation
of, cannot toe-out more than 15 degrees, affected leg;
limitation of adduction of, cannot cross legs. A 20 percent
evaluation is warranted for limitation of abduction of,
motion lost beyond 10 degrees.
Normal hip flexion is from 0 to 125 degrees and normal
abduction is from 0 to 45 degrees. See 38 C.F.R. § 4.71a,
Plate II.
It should be noted that except for flexion, no other range of
motion studies of the hips could be performed during the
April 2003 VA examination due to the veteran being in a
wheelchair following a March 2002 motorcycle accident. In
this regard, the April 2003 examiner said that the veteran's
non-ambulatory status limited adequate testing on range of
motion of his hips. On a similar note, neither the April
1998 examination report nor the April 2003 examination report
contains findings on extension thereby preventing a review of
the veteran's disability under Code 5251. Under these
circumstances, any attempt to have the veteran reexamined for
the purpose of obtaining additional limitation of motion
findings would not be feasible. However, any reasonable
doubt as to the degree and duration of findings pertaining to
the veteran's right and left hip disabilities will be
resolved in his favor. See 38 C.F.R. § 4.3.
Right Hip
Based on a strict adherence to the criteria under Codes 5252
or 5253 for limitation of motion of the thigh, the veteran's
right hip disability does not warrant a compensable
evaluation. His demonstrated flexion of 120 degrees at the
April 1998 examination and 110 degrees during the April 2003
examination, while evidencing some loss, do not satisfy the
criteria for a compensable evaluation under Code 5252. Other
range of motion findings during the April 1998 examination
for the right hip revealed abduction to 30 degrees, external
rotation to 90 degrees and internal rotation to 10 degrees.
These findings also do not meet the criteria for a
compensable rating under Code 5253.
As shown above, the veteran's right hip disability does not
meet the criteria for a compensable evaluation under the
limitation of motion Codes 5252 or 5253. However, the
veteran does experience objective pain on motion of the right
hip since the April 1998 VA examiner noted visible pain.
This examiner stated that the veteran had pain in the right
hip beginning at 40 degrees of abduction and ending at 30
degrees. He also noted 25 degrees less motion of the right
hip during flare-ups. It is in view of this pain and
associated functional loss that a 10 degree evaluation is
warranted for the right hip under Diagnostic Code 5252.
Moreover, by resolving all reasonable doubt in the veteran's
favor, the Board finds that the 20 percent rating is
warranted from the effective date of the grant of service
connection to the present date. 38 C.F.R. § 4.3. However, a
higher evaluation under Code 5252 is not warranted in view of
the veteran's actual noncompensable limitation of flexion.
The Board also finds that a higher or additional evaluation
is not assignable under any other potentially applicable
diagnostic code, as there is no evidence that the right hip
disability has resulted in, or in disability comparable to,
ankylosis (Diagnostic Code 5250), flail joint (Diagnostic
Code 5254) or impairment of the femur (Diagnostic Code 5255).
Left Hip
Like the right hip, the veteran's demonstrated flexion of 110
during both the April 1998 and April 2003 VA examinations,
while evidencing some limitation of motion, does not meet the
criteria under Code 5252 for a compensable rating. However,
the veteran's left hip disability does warrant a compensable,
10 percent, evaluation under Code 5253 for limitation of
rotation. This is based on findings during the April 1998 VA
examination in which the veteran demonstrated only 10 degrees
on external rotation and 5 degrees on internal rotation, thus
demonstrating limitation of rotation of, cannot toe-out more
than 15 degrees, affected leg. 38 C.F.R. § 4.71a.
To meet the criteria for the next highest level of 20 percent
under Code 5253, the veteran would have to demonstrate
limitation of abduction, motion lost beyond 10 degrees. His
demonstrated abduction of 20 degrees during the April 1998 VA
examination simply does not meet this. Nonetheless, the
veteran also demonstrated functional loss in April 1998.
That is, he showed visible pain, including pain in the left
hip beginning at 30 degrees of abduction and ending at 20
degrees. He also demonstrated 25% additional loss of motion
during flare-ups. These findings thus warrant rating the
veteran at the next highest level of 20 percent under Code
5253 for functional loss. The Board finds that the 20
percent rating is warranted from the effective date of the
grant of service connection to the present date after
resolving all reasonable doubt in the veteran's favor.
38 C.F.R. § 4.3. As this rating is the maximum allowable
rating under Code 5253, a higher than 20 percent rating under
this code is precluded by law. See Johnston v. Brown, 10
Vet. App. 80 (1997).
The only other limitation of motion code that would allow for
a higher than 20 percent rating is Code 5252 for limitation
of flexion. Under this code, a 30 percent rating is
warranted for flexion limited to 20 degrees. However,
considering that the veteran's actual flexion of 110 degrees
at both the 1998 and 2003 examinations does not even meet the
criteria for the minimum 10 percent rating under this code,
the Board does not find that a 30 percent rating under this
code is in order. This is even after considering the
veteran's functional loss, including pain in the left hip at
120 degrees flexion and ending at 110 degrees flexion. In
other words, if the veteran were to be evaluated under this
code as opposed to Code 5253, his left hip disability would
not warrant a rating any higher than 20 percent.
The Board also finds that a higher or additional evaluation
is not assignable under any other potentially applicable
diagnostic code, as there is no evidence that the veteran's
service-connected left hip disability has resulted in, or in
disability comparable to, ankylosis (Diagnostic Code 5250),
flail joint (Diagnostic Code 5254) or impairment of the femur
(Diagnostic Code 5255). As a side note, the veteran did
sustain a left femur transtrochanteric fracture in a March
2002 motorcycle accident. However, since this injury is not
related to the veteran's service-connected left hip
disability, application of Diagnostic Code 5255 for
impairment of the femur is not warranted.
Shoulders
During an April 1998 VA examination, the veteran reported
pain in both shoulders about two or three times a week. He
said the pain lasted anywhere between 30 minutes to all day.
He reported increased pain with any kind of strenuous
activity involving the shoulders and said that the pain was
getting worse. He was not taking medication for this
disability. Findings in the right shoulder revealed flexion
to 140 degrees with pain beginning at 150 degrees and ending
at 140 degrees. Abduction was limited to 120 degrees with
pain beginning at 130 degrees and ending at 120 degrees. In
the left shoulder, flexion was limited to 130 degrees with
pain beginning at 140 degrees and ending at 130 degrees.
Left shoulder abduction was limited to 110 degrees with pain
beginning at 120 degrees and ending at 110 degrees. There
was visible pain in each shoulder on motion with
approximately 25% less range of motion in each shoulder
during flare-ups. There was no deformity or ankylosis in
either shoulder. X-rays of the shoulders were negative. The
veteran was diagnosed as having chronic bursitis involving
both shoulders.
The veteran complained during an April 2003 VA examination of
pain and popping in both shoulders on rising each morning.
There was no deformity, effusion, tenderness or atrophy in
either shoulder on examination. Range of motion revealed 170
degrees of flexion and 170 degrees of abduction in each
shoulder. The examiner commented on the veteran's March 2002
motorcycle accident and said that it was "impossible to
evaluate the contribution to [the veteran's] pain that any
service connected condition might pose." He said he found
no evidence that the veteran ever had bursitis or tendonitis
of his shoulders during service or one year thereafter, and
diagnosed the veteran as having tendonitis, both shoulders,
not found.
The applicable diagnostic code for limitation of motion of
the shoulder is found under Diagnostic Code 5201 for
limitation of motion of the arm. Under this code, a 20
percent evaluation is warranted when the arm is limited to
shoulder level. A 30 percent evaluation is warranted when
the arm is limited midway between side and shoulder level.
For a 40 percent evaluation, the arm must be limited to 25
degrees from side. For evaluation purposes, shoulder level
is when the arm reaches 90 degrees on forward elevation
(flexion) and abduction. Full shoulder flexion and abduction
is from 0 to 180 degrees. See 38 C.F.R. § 4.71, Plate I.
Range of motion testing during the April 1998 examination
revealed right shoulder elevation (flexion) to 140 degrees
and abduction to 120 degrees. Left shoulder elevation was to
130 degrees and abduction was to 110 degrees. During the
April 2003 VA examination, the veteran demonstrated elevation
and abduction to 170 degrees in both shoulders. Based on
these findings, it is evident that the veteran experiences
some limitation of motion on both flexion and abduction of
the right and left shoulders, but not to the extent of
meeting the criteria for a compensable evaluation under
Diagnostic Code 5201. That is, the veteran does not
experience limitation of motion at shoulder level. See
38 C.F.R. § 4.71, Plate I. This is based on a strict
adherence to the rating criteria under Diagnostic Code 5201.
As such, were the veteran to be evaluated based strictly on
the criteria found under Code 5201 for each shoulder, he
would not be entitled to a compensable, 20 percent, rating
for either the right or left shoulder.
However, functional loss due to pain and other factors must
also be considered when rating the veteran's shoulder
disabilities. Accordingly, it is evident that the next
higher evaluation under Diagnostic Code 5201, to 20 percent,
is warranted for each shoulder due to painful motion. See
38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7.
In this regard, the April 1998 examiner remarked that there
was visible pain in the right and left shoulders on motion.
He specifically noted pain in the right shoulder beginning at
150 degrees of flexion and ending at 140 degrees and pain
beginning at 130 degrees of abduction and ending at 120
degrees. In the left shoulder, there was pain beginning at
140 degrees of flexion and ending at 130 degrees and pain
beginning at 120 degrees abduction and ending at 110 degrees.
The examiner also noted that on acute flare-ups of pain in
each shoulder, there was probably 25% less range of motion.
In sum, in view of the veteran's painful motion in both the
right and left shoulders, he is entitled to the next higher
evaluation, to 20 percent, for each shoulder respectively,
but certainly no higher, under Diagnostic Code 5201. See
38 C.F.R. §§ 4.40 and 4.45, 4.71a; DeLuca, 8 Vet. App. at
204-7. By resolving all reasonable doubt in the veteran's
favor, the Board finds that the 20 percent ratings are
warranted from the effective date of the grant of service
connection to the present date. 38 C.F.R. § 4.3.
On the basis of the current record, the only other diagnostic
codes pursuant to which the veteran's shoulder disabilities
could be rated higher are Diagnostic Code 5202 for impairment
of the humerus with abduction limited to 25 degrees, and
Diagnostic Code 5200 for unfavorable anklylosis; however,
there are no medical findings of impairment of the humerus or
ankylosis, or evidence to even suggest that, with
consideration of functional loss due to pain, these
disabilities are comparable to impairment of the humerus or
ankylosis. Thus, these diagnostic codes are not applicable
in the instant appeal.
Elbows
The veteran complained during an April 1998 VA examination of
experiencing elbow pain about three or four times a week.
The pain lasted anywhere between one to three hours. He had
increased pain with any kind of minimal strenuous activity
involving the elbows. He was not taking any medication for
the pain and got some relief from rest. The veteran was
noted to be right hand dominant. On examination pain was
visible in both elbows on motion. Range of motion in the
right elbow revealed flexion to 130 degrees and right forearm
pronation to 60 degrees. Right forearm supination was
limited to 40 degrees. Pin in the right elbow began at 140
degrees flexion and ended at 130 degrees. In the left elbow,
flexion was limited to 125 degrees and left forearm pronation
to 50 degrees. Left forearm supination was limited to 30
degrees. There was pain in the left elbow beginning at 130
degrees flexion and ending at 125 degrees flexion. On acute
flare-ups of both, there was approximately 25% less range of
motion in each elbow. There was no deformity, swelling or
ankylosis involving either elbow. X-rays of the elbows were
negative, but showed soft tissue calcification at the distal
end of the biceps. The veteran was diagnosed as having
chronic tendonitis involving both elbows with soft tissue
calcification noted involving the distal end of the biceps.
An April 2003 VA examination report notes that the veteran
had not sought medical treatment for his elbows and had no
complaints of elbow pain. Range of motion of both elbows was
from 0 to 140 degrees with 64 degrees supination and 81
degrees pronation. The examiner noted the veteran's
motorcycle accident in March 2002 and resulting injuries and
opined that it was "impossible to evaluate the contribution
to [the veteran's] pain that any service connected condition
might pose." He added that he found no evidence that the
veteran ever had bursitis or tendonitis of his elbows and
diagnosed the veteran as having tendonitis, both elbows, not
found.
Under Diagnostic Code 5206 for limitation of flexion of the
forearm, a 0 percent rating is warranted for flexion limited
to 110 degrees. A 10 percent rating requires flexion limited
to 100 degrees, and a 20 percent rating requires flexion
limited to 90 degrees. A 30 percent rating is warranted for
the major extremity (and 20 percent for the minor extremity)
for flexion limited to 70 degrees. A 40 percent rating is
warranted in the major extremity (and a 30 percent rating in
the minor extremity) for flexion limited to 55 degrees. A 50
percent rating is warranted in the major extremity (and a 40
percent rating in the minor extremity) for flexion limited to
45 degrees.
Under Diagnostic Code 5207 for limitation of extension, a 10
percent rating is warranted in either extremity for extension
limited to 45 degrees or 60 degrees. A 20 percent rating is
warranted in either extremity for extension limited to 70
degrees. A 30 percent rating is warranted for the major
extremity (and 20 percent for the minor extremity) for
extension limited to 90 degrees. A 40 percent rating is
warranted in the major extremity (and a 30 percent rating in
the minor extremity) for extension limited to 100 degrees. A
50 percent rating is warranted in the major extremity (and a
40 percent rating in the minor extremity) for extension
limited to 110 degrees.
Normal elbow flexion and extension is from 0 to 145 degrees.
See 4.71a, Plate I.
Also, under Diagnostic Code 5208, a maximum 20 percent rating
is warranted for either extremity when forearm flexion is
limited to 100 degrees and extension is limited to 45
degrees.
Based on the above-noted findings, it is evident that the
veteran experiences some limitation of flexion of the
forearm, but very slight. See 38 C.F.R. § 4.71, Plate I.
Such limitation is certainly not of the severity to warrant a
compensable rating under Code 5206. As for extension, the
1998 VA examination report does not contain findings on
extension and the 2003 VA examination report shows normal
extension at 0 degrees. See 38 C.F.R. § 4.71, Plate I.
Thus, were the veteran to be evaluated based strictly on the
criteria found under Code 5206 or Code 5207, he would not be
entitled to a compensable rating for either the right or left
elbow, nor does he meet the criteria for a 20 percent rating
under Code 5208.
However, functional loss due to pain and other factors must
also be considered when rating the veteran's shoulder
disabilities. Accordingly, it is evident that the next
higher evaluation under Diagnostic Code 5206, to 10 percent,
is warranted for each elbow due to painful motion. See
38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7.
In this regard, the April 1998 examiner remarked that there
was visible pain in the right and left elbows on motion. He
specifically noted pain in the right elbow beginning at 140
degrees of flexion and ending at 130 degrees. In the left
elbow, there was pain beginning at 130 degrees of flexion and
ending at 125 degrees. The examiner also noted that on acute
flare-ups of pain in each elbow, there was probably 25% less
range of motion.
In sum, in view of the veteran's painful motion in both the
right and left elbows, he is entitled to the next higher
evaluation, to 10 percent, for each elbow respectively, but
certainly no higher, under Diagnostic Code 5206. See
38 C.F.R. §§ 4.40 and 4.45, 4.71a; DeLuca, 8 Vet. App. at
204-7. The Board finds that 20 percent ratings for each
elbow is warranted from the effective date of the grant of
service connection to the present date, after resolving all
reasonable doubt in the veteran's favor. 38 C.F.R. § 4.3.
The Board also finds that a higher or additional evaluation
is not assignable under any other potentially applicable
diagnostic code, as there is no evidence that the right or
left elbow disability has resulted in, or in disability
comparable to, ankylosis (Diagnostic Code 5205), impairment
of flail joint fracture (Diagnostic Code 5209), nonunion of
the radius and ulna (Diagnostic Code 5210), impairment of the
ulna or radius (Diagnostic Codes 5211, 5212) or impairment of
supination or pronation (Diagnostic Code 5213).
Right Knee
The veteran reported daily pain in the right knee during an
April 1998 VA examination. He reported increased pain on
prolonged standing, walking and sitting. He was not taking
any medication and obtained minimal relief with rest
Examination of the right knee revealed knee flexion to 130
degrees and extension to minus 5 degrees. Further
examination revealed that there was crepitation 2+. There
was no effusion and no atrophy of the quadriceps muscles.
There was also no laxity of the joint. Pain in the right
knee began at 140 degrees of flexion and ended at 130
degrees. Pain also began at minus 10 degrees of extension
and ended at minus 5 degrees. On acute flare-ups, there was
probably 25% less range of motion in the right knee. Pain
was visibly manifested in the right knee on motion. There
was no deformity or ankylosis involving the right knee.
There was also no gait abnormality and no weight-bearing
abnormality involving the right knee at that time. Right
knee x-rays were normal. The veteran was diagnosed as having
chronic patellar tendonitis of the right knee.
The veteran complained of right knee pain during an April
2003 VA examination. The examiner noted that the veteran
sustained a severe abrasion of the right knee in a March 2002
motorcycle accident. Examination of the right knee revealed
a tender, 8 cm split-thickness skin graft covering a defect
over the anteromedal aspect of the right patella. There was
no effusion or ligament laxity of either knee. Active range
of motion of the right knee was from 8 degrees to 95 degrees.
The examiner diagnosed the veteran as having a tender, skin-
grafted, scar of the right knee due to his March 2002
motorcycle accident and tendonitis, right knee, not found.
He noted that the veteran had multiple severely painful
conditions of different areas including the right knee due to
the motorcycle accident for which he was taking morphine. He
added that it was "impossible to evaluate the contribution
of his pain that any service-connected condition might
pose." He said he found no evidence that the veteran ever
had bursitis or tendonitis of the right knee during service
or one year thereafter.
Under Code 5260 for limitation of flexion, a 0 percent
evaluation is warranted for knee flexion limited to 60
degrees, a 10 percent evaluation is warranted for knee
flexion limited to 45 degrees and a 20 percent evaluation is
warranted for knee flexion limited to 30 degrees. 38 C.F.R.
§ 4.71a, Diagnostic Code 5260 (2003).
For limitation of extension under Code 5261, a 0 percent
evaluation is warranted for extension limited to 5 degrees, a
10 percent evaluation is warranted for extension limited to
10 degrees, and a 20 percent evaluation is warranted for
extension limited to 15 degrees. 38 C.F.R. § 4.71a,
Diagnostic Code 5261 (2003).
Normal knee flexion and extension is from 0 to 140 degrees.
See 4.71a, Plate II.
Diagnostic Code 5257 refers generally to recurrent
subluxation or lateral instability. If the disorder is
severe, a 30 percent evaluation is warranted, if moderate, a
20 percent evaluation is warranted, and if slight, a 10
percent evaluation is warranted. 38 C.F.R. § 4.71a.
Considering the evidence in light of the above-noted
criteria, the Board finds that the veteran demonstrated
normal range of motion on extension of the right knee, but
his right knee disability warrants a 10 percent rating for
painful motion under Diagnostic Code 5260 for limitation of
flexion. Based on a strict adherence to the rating criteria,
the veteran's limitation of flexion, albeit slight, as
demonstrated in 1998 would not warrant a compensable
evaluation. See 38 C.F.R. § 4.71a, Plate I. However, an
additional rating, to 10 percent, is warranted for functional
loss.
In regard to functional loss, the April 1998 examiner
remarked that there was visible pain in the right knee on
motion. He specifically noted pain in the right knee
beginning at 140 degrees of flexion and ending at 130
degrees. He added that on acute flare-ups of the right knee,
there was probably 25% less range of motion.
In sum, in view of the veteran's painful motion in the right
knee, he is entitled to the next higher evaluation, to 10
percent, for the right knee, but certainly no higher, under
Diagnostic Code 5260. See 38 C.F.R. §§ 4.40 and 4.45, 4.71a;
DeLuca, 8 Vet. App. at 204-7. By resolving all reasonable
doubt in the veteran's favor, the Board finds that a 10
percent rating for the right knee is warranted from the
effective date of the grant of service connection to the
present date. 38 C.F.R. § 4.3.
Diagnostic Code 5257 does not apply since there is no
evidence or complaints of instability or subluxation of the
right knee. The 1998 VA examination report makes no mention
of such manifestations and the 2003 VA examination report
notes that there was no effusion or ligamentous laxity of the
knees.
The Board has also considered other diagnostic codes in
evaluating the veteran's right knee disability, but finds
that no other diagnostic code provides a basis for a rating
in excess of 10 percent on either an alternative or
additional basis at any point since the effective date of the
grant of service connection. In the absence of evidence of
disability comparable to ankylosis, dislocation of semi-lunar
cartilage, or impairment of the tibia or fibula due to his
service-connected disability, Diagnostic Codes 5256, 5258, or
5262, respectively, are not applicable.
Schamberg's Purpura with Hyperpigmentation
The veteran underwent VA dermatology examinations in June
1998 and August 2003. The June 1998 VA examiner relayed the
veteran's complaint of a rash to his bilateral lower legs
that was nonpruritic. He diagnosed the veteran as having
Schamberg's purpura with secondary post inflammatory
hyperpigmentation and said that the condition may improve
somewhat with trimainicolone crème, but that there was no
significant treatment for this condition; an essentially
benign capillaritis disorder.
Findings in August 2003 included excoriated pigmented scars
on the veteran's left lower leg with some excoriation, mainly
on the anterior part of the left shin. The examiner who
conducted the August 2003 dermatology examination said that
he "could not appreciate Chamberg's disease (purpura with
hyperpigmentation)."
This disability is evaluated under the same criteria as the
veteran's tinea pedis; under Diagnostic Code 7806 for
dermatitis. As noted above, by regulatory amendment
effective August 30, 2002, substantive changes were made to
the schedular criteria for evaluation of skin diseases, as
set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7800-7833;
67 Fed. Reg. 49596-49599, July 31, 2002. The RO has
considered both versions of the criteria with respect to this
claim; thus there is no prejudice to the veteran in the
Board's consideration of both the old and new criteria. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
Under the former criteria for dermatitis or eczema, a 10
percent evaluation requires exfoliation, exudation or itching
if involving an exposed surface or extensive area. A 30
percent rating is warranted for eczema with exudation or
itching constant, extensive lesions, or marked disfigurement.
A 50 percent evaluation requires ulceration or extensive
exfoliation or crusting, and systemic or nervous
manifestations, or exceptionally repugnant. 38 C.F.R.
§ 4.118, Diagnostic Code 7806.
Under the new version of Diagnostic Code 7806 for dermatitis,
a 10 percent rating is warranted with at least 5 percent, but
less than 20 percent, of the entire body, or at least 5
percent, but less than 20 percent, of exposed areas affected,
or; intermittent systemic therapy such as corticosteroids or
other immunosuppressive drugs is required for a total
duration of less than six weeks during the past 12-month
period. A 30 percent rating is warranted when 20 to 40
percent of the entire body or 20 to 40 percent of exposed
areas is affected, or; systemic therapy such as
corticosteroids or other immunosuppressive drugs is required
for a total duration of six weeks or more, but not
constantly, during the past 12-month period. With more than
40 percent of the entire body or more than 40 percent of
exposed areas affected, or; with constant or near-constant
systemic therapy such as corticosteroids or other
immunosuppressive drugs required during the past 12-month
period, a 60 percent rating is assigned.
As far as symptoms, none have been attributed to this
disorder. Indeed, as noted by the June 1998 examiner, this
condition is essentially a benign capillaritis disorder.
Moreover, the August 2003 VA examiner could not
"appreciate" this disease. Simply put, the medical
evidence does not establish exfoliation, exudation or itching
on an exposed area as required for a compensable, 10 percent,
evaluation under the old Diagnostic Code 7806 (2002); nor
does the evidence establish that the condition affects at
least 5 percent of the veteran's entire body or at least 5
percent of exposed areas affected (2003). In addition, the
disability does not require systemic therapy (2003).
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the assignment of an
initial compensable schedular rating for the veteran's
service-connected Schamberg's purpura with hyperpigmentation.
As the preponderance of the evidence is against the claim,
the benefit-of-the-doubt rule does not apply and the claim
must be denied. 38 U.S.C.A. § 5107(b).
Back
The veteran complained of pain involving the upper and lower
back at an April 1998 VA examination which occurred at least
once a week. He said the pain lasted anywhere from thirty
minutes to one and a half hours. He reported increased pain
on prolonged standing, walking, stooping and bending forward
as well as going up and down flights of stairs. He said he
was not taking any medication and the pain was relieved with
rest. On examination pain was visible in the thoracic and
lumbar spine with motion. Range of motion studies revealed
forward flexion to 80 degrees and backward extension to 10
degrees. Right lateral flexion was limited to 30 degrees and
left lateral flexion was to 20 degrees. Rotation to the
right was 15 degrees and to the left was 25 degrees. Pain
began at 90 degrees flexion and ended at 80 degrees. Pain
also began at 20 degrees extension and ended at 10 degrees.
On acute flare-ups of pain, the examiner estimated there was
probably 25% less range of motion in the thoracic and lumbar
spine. X-rays revealed minimal spondylosis deformans
involving the lumbar spine.
According to an April 2003 VA examination report, the veteran
sustained a fracture to the 12th thoracic vertebrae and the
sacrum and possible fractures of the 11th thoracic and 4th
lumbar vertebrae in a motorcycle accident in March 2002. The
report also indicates that the veteran had been unable to
walk since the accident and was confined to a wheelchair.
During the examination, the veteran described his back pain
as a constant, burning and pushing pain. He said that the
pain was at a 5-7/10 level and he denied seeking treatment
for pain until his motorcycle accident in 2002. It was noted
that the veteran did not wear a spinal orthosis. On
examination the veteran presented in a wheelchair. Findings
revealed a large, depressed, skin-grafted wound of the lower
sacrum. The paravertebral muscles were of normal tone and
without spasm. Range of motion of the back, which was
measured in a sitting position, was from 12 degrees extension
to 103 degrees flexion with 18 degrees lateral bend to the
left and to the right and 22 degrees rotation to the left and
to the right. The veteran was diagnosed as having
spondylosis deformans, L4&L5 lumbar spine, manifested by
lower back pain radiating into the right hip and
characteristic radiographic changes. He was also diagnosed
as having fractures, multiple, lumbar (closed) and sacral
(open) spine with loss of rectal and buttocks and impairment
of sacral nerve root function, due to injuries sustained in
motorcycle accident in March 2002.
During the pendency of the veteran's appeal, the diagnostic
criteria for evaluating spine disabilities were revised,
effective September 23, 2002 (see 67 Fed. Reg. 54,345-49
(August 22, 2002)) and again, effective September 26, 2003
(see 68 Fed. Reg. 51,454 (August 27, 2003)). As the RO has
considered both the former and revised criteria, and
furnished the veteran with notice of the revised criteria
(see January 2004 supplemental statement of the case), there
is no due process bar to the Board in also considering the
former and revised criteria, applying the more favorable
result, if any. See Bernard v. Brown, 4 Vet. App. 384
(1993).
The veteran is currently evaluated under the old Diagnostic
Code 5295 for lumbosacral strain. Under this code, a 20
percent rating requires muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in
standing position. A 40 percent rating requires severe
impairment; to include listing of whole spine to opposite
side, positive Goldthwaite's sign, marked limitation of
forward bending in standing position, loss of lateral motion
with osteo-arthritic changes, or narrowing or irregularity of
joint space, or some of the above with abnormal mobility on
forced motion. 38 C.F.R. § 4.71a.
Also under the old version of the rating schedule is
Diagnostic Code 5290 for limitation of motion of the lumbar
spine. Under this code, a 10 percent rating is warranted for
slight limitation of motion, a 20 percent rating or moderate
limitation of motion and a 40 percent rating for severe
limitation of motion. 38 C.F.R. § 4.71a.
When evaluating musculoskeletal disabilities under the
limitation of motion codes, the VA may, in addition to
applying schedular criteria, consider granting a higher
rating in cases in which functional loss due to pain,
weakness, excess fatigability, or incoordination is
demonstrated, and those factors are not contemplated in the
relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59;
DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).
As noted above, range of motion findings in 1998 revealed
that the veteran had limited motion on extension, to 10
degrees, but normal flexion, to 90 degrees. During the April
2003 VA examination, the veteran demonstrated flexion to 103
degrees and extension to 12 degrees, in a sitting position.
These findings simply do not warrant a more than moderate
degree of impairment for the veteran's service-connected
thoraco-lumbosacral strain, even after considering additional
disability due to functional loss. In regard to functional
loss, the veteran demonstrated visible pain on motion during
the 1998 VA examination, including pain beginning at 90
degrees flexion and ending at 80 degrees, and beginning at 20
degrees extension and ending at 10 degrees. During the 2003
VA examination, the veteran reported experiencing a constant
pain at a 507/10 scale and said he had not sought care for
the pain prior to the 2002 motorcycle accident. Thus, while
there is no disputing that the veteran experiences functional
loss due to pain, such loss, when combined with the veteran's
actual range of motion findings, do not approximate a more
than 20 percent rating for moderate impairment. See 38
C.F.R. §§ 4.40, 4.45 (2002); Deluca.
A higher than 20 percent rating is not warranted under
Diagnostic Code 5295 since the examinations findings in 1998
and 2003 do not meet any of the criteria for the next higher,
40 percent, rating. That is, there is no evidence of listing
of whole spine to the side, positive Goldthwaite's sign, or
marked limitation of forward bending on standing (during the
1998 VA examination).
Furthermore, in the absence of evidence of, or disability
comparable to, ankylosis of the spine or intervertebral disc
syndrome, there is no basis for evaluation under Codes 5286,
5289 or 5293. While there is evidence as noted in the April
2003 VA examination report that the veteran sustained
fractures to the 12th thoracic vertebrae and the sacrum and
possible fractures of the 11th thoracic and 4th lumbar
vertebrae, these fractures were attributed to a postservice
motorcycle accident in March 2002. Consequently, application
of Diagnostic Code 5285 regarding residuals of fractured
vertebrae is not warranted in this case.
Under the new general rating formula for diseases and
injuries of the spine, (for Diagnostic Codes 5235 to 5243
unless 5243 is evaluated under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating
Episodes): with or without symptoms such as pain (whether or
not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease. A 20
percent evaluation will be assigned for forward flexion of
the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees; or, forward flexion of the cervical
spine greater than 15 degrees but not greater than 30
degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. A 30 percent evaluation
requires forward flexion of cervical spine 15 degrees or
less; or, favorable ankylosis of the entire cervical spine.
A 40 percent evaluation will be assigned for unfavorable
ankylosis of the entire cervical spine; or, forward flexion
of the thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine. A 50 percent
evaluation will be assigned of unfavorable ankylosis of the
entire thoracolumbar spine. A 100 percent evaluation will be
assigned for unfavorable ankylosis of the entire spine. Id.
Note (1): Evaluate any associated objective neurological
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes,
normal forward flexion of the cervical spine is zero to 45
degrees, extension is zero to 45 degrees, left and right
lateral flexion are zero to 45 degrees, and left and right
lateral rotation are zero to 80 degrees. Normal forward
flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral
flexion are zero to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The combined range of motion
refers to the sum of the range of forward flexion, extension,
left and right lateral flexion, and left and right rotation.
The normal combined range of motion of the cervical spine is
340 degrees and of the thoracolumbar spine is 240 degrees.
The normal ranges of motion for each component of spinal
motion provided in this note are the maximum that can be used
for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state that
because of age, body habitus, neurologic disease, or other
factors not the result of disease or injury of the spine, the
range of motion of the spine in a particular individual
should be considered normal for that individual, even though
it does not conform to the normal range of motion stated in
Note (2). Provided that the examiner supplies an explanation,
the examiner's assessment that the range of motion is normal
for that individual will be accepted.
Note (4): Round each range of motion measurement to the
nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis
is a condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment in
neutral position (zero degrees) always represents favorable
ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar
and cervical spine segments, except when there is unfavorable
ankylosis of both segments, which will be rated as a single
disability. Diagnostic Code 5235, Vertebral fracture or
dislocation; Diagnostic Code 5236, Sacroiliac injury and
weakness; Diagnostic Code 5237 Lumbosacral or cervical
strain; Diagnostic Code 5238 Spinal stenosis; Diagnostic Code
5239 Spondylolisthesis or segmental instability; Diagnostic
Code 5240 Ankylosing spondylitis; Diagnostic Code 5241 Spinal
fusion; Diagnostic Code 5242 Degenerative arthritis of the
spine (see also diagnostic code 5003); Diagnostic Code 5243
Intervertebral disc syndrome.
The veteran's range of motion findings of the thoracolumbar
spine (of flexion to 90 degrees in April 1998, and 103
degrees in April 2003), do not meet the criteria for a higher
rating under the new criteria of Code 5237. This is because
the veteran has not shown evidence of ankylosis of the spine,
nor are his actual range of motion findings of the
thoracolumbar spine of the severity to warrant a rating
comparable to ankylosis, even after considering functional
loss due to pain. 38 C.F.R. §§ 4.40, 4.45, Deluca.
Moreover, because the new rating criteria incorporates pain
into the criteria, it is questionable whether a separate
evaluation for painful motion is appropriate under the new
rating criteria.
As to the newly revised criteria of 38 C.F.R. § 4.71a,
Diagnostic Code 5243, the evidence does not support rating
the veteran under this code despite his complaints at the
April 2003 VA examination of radiating pain into the right
hip. This is in view of the absence of any evidence showing
the veteran has intervertebral disc syndrome or any
incapacitating episodes related thereto.
As the preponderance of the evidence is against an initial
rating in excess of 20 percent for the veteran's service-
connected thoracolumbosacral strain with spondylosis
deformans from the date of the grant of service connection,
the benefit-of-the-doubt rule does not apply and the claim
must be denied. 38 U.S.C.A. § 5107(b).
Burn Scars of the Left Neck and Shoulder
The veteran's service medical records show treatment for 1st
and 2nd degree burns to the left side of the neck and left
shoulder that were described as covering 3% to 4% of total
body surface.
Postservice evidence includes an April 1998 VA dermatology
report that is silent as to complaints or findings regarding
burn scars. It also includes an April 2003 VA examination
report in where the only scars noted was a scar on the
veteran's left lower extremity with skin graft and a scar of
tracheotomy. The examiner stated that there was no residual
of burn scar on the veteran's left neck and shoulder.
During the pendency of the veteran's claim, the VA regulation
containing the criteria for rating skin disabilities, 38
C.F.R. § 4.118, was amended. See 67 Fed. Reg. 49,596 (July
31, 2002). The change in the regulation became effective
August 30, 2002. The RO has considered both versions of the
criteria with respect to this claim; thus there is no
prejudice to the veteran in the Board's consideration of both
the old and new criteria. See Bernard v. Brown, 4 Vet. App.
384 (1993).
Diagnostic Code 7800 pertains to disfigurement of the head,
face or neck. Under the pertinent criteria in effect prior
to August 30, 2002, a noncompensable rating is assigned when
the scars are slight. A 10 percent rating is assigned when
such scars are moderate and disfiguring. A 30 percent
evaluation is warranted for a severe scar, especially if it
produces a marked or unsightly deformity of the eyelid, lip,
or auricle. A complete or exceptionally repugnant deformity
on one side of the face or marked or repugnant bilateral
disfigurement warrants a 50 percent evaluation. 38 C.F.R.
§ 4.118.
Diagnostic Code 7802 under the old code pertains to scar
burns in the second degree. This code provides for a maximum
10 percent rating for a second-degree burn in an area or
areas approximating 1 square foot (0.1 m.2).
Under the old Diagnostic Code 7803, a maximum 10 percent
rating is warranted for scars that are superficial, poorly
nourished, with repeated ulceration. 38 C.F.R. § 4.118.
Additionally, under the old Diagnostic Code 7804, a maximum
10 percent rating is warranted for scars that are
superficial, tender and painful on objective demonstration.
The Note to this code provides that a 10 percent rating will
be assigned, when the requirements are met, even though the
location may be on the tip of finger or toe, and the rating
may exceed the amputation value for the limited involvement.
In view of the absence of any postservice findings of
residual burn scars to the veteran's left neck or shoulder,
the criteria for a compensable evaluation under the old
Diagnostic Codes 7800 or 7802 are clearly not met from the
effective date of the grant of service connection. 38 C.F.R.
§ 4.118 (pre August 30, 2002). For the same reason a
compensable evaluation under the other potentially applicable
codes for scars under the old criteria, Diagnostic Codes 7803
or 7804, are not warranted.
The Note in the revised (post August 30, 2002) criteria of
Diagnostic Code 7800, sets out eight characteristics of
disfigurement for evaluation purposes. These characteristics
are as follows: Scar five or more inches (13 or more
centimeters) in length, scar at least one-quarter inch (0.6
centimeters) wide at the widest part, surface contour of scar
elevated or depressed on palpation, scar adherent to
underlying tissue, skin hypo- or hyper-pigmented in an area
exceeding six square inches (39 square centimeters), skin
texture abnormal (irregular, atrophic, shiny, scaly, etc.) in
an area exceeding six square inches (39 square centimeters),
underlying soft tissue missing in an area exceeding six
square inches (39 square centimeters), and skin indurated and
inflexible in an area exceeding six square inches (39 square
centimeters).
Under the newly revised criteria for Diagnostic Code 7800, a
10 percent rating is warranted when there is one
characteristic of disfigurement. With visible or palpable
tissue loss and either gross distortion or asymmetry of one
feature or paired set of features (nose, chin, forehead, eyes
(including eyelids), ears (auricles), cheeks, lips), or; with
two or three characteristics of disfigurement, a 30 percent
disability rating is warranted. A 50 percent rating is
warranted when there is visible or palpable tissue loss and
either gross distortion or asymmetry of two features or
paired sets of features (nose, chin, forehead, eyes
(including eyelids), ears (auricles), cheeks, lips); or with
four or five characteristics of disfigurement. An 80 percent
rating is warranted when there is visible or palpable tissue
loss and either gross distortion or asymmetry of three or
more features or paired sets of features (nose, chin,
forehead, eyes (including eyelids), ears (auricles), cheeks,
lips); or with six or more characteristics of disfigurement.
Tissue loss of the auricle is to be rated under Diagnostic
Code 6207. See 67 Fed. Reg. 49,596 (July 31, 2002).
Under the newly criteria for Diagnostic Code 7802, a maximum
10 percent rating is warranted for scars that are superficial
and do not cause limited motion in an area of 144 square
inches or greater. 38 C.F.R. § 4.118.
Under the newly revised Diagnostic Code 7803, a maximum 10
percent rating is warranted for scars that are superficial
and unstable. 38 C.F.R. § 4.118.
Under the newly reviewed Diagnostic Code 7804, a maximum 10
percent rating is warranted for scars, superficial, painful
on examination. 38 C.F.R. § 4.118.
It is clear that a compensable, 10 percent, evaluation is not
warranted under the newly revised Code 7800 since none of the
8 characteristics of disfigurement have been found that can
be attributed to the veteran's service-connected disability,
nor have the criteria for a compensable evaluation under
Codes 7802, 7803-7805 been met. Again, this is in view of
the absence of any findings regarding residual burn scars to
the veteran's left neck or shoulder. 38 C.F.R. § 4.118.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the assignment of a
compensable initial schedular rating for the veteran's
service-connected residual burn scars to the left neck and
shoulder. As such, the benefit-of-the-doubt rule does not
apply and the claim must be denied. 38 U.S.C.A. § 5107(b).
Diabetes Mellitus
An April 1998 VA examination report notes that the veteran's
diabetes mellitus was diagnosed on routine "SMA-20"
laboratory test. The report further notes that the "SMA-
20" dated in April 1998 was essentially unremarkable except
for high glucose at 261 mg/dl. The veteran was diagnosed as
having diabetes mellitus, asymptomatic.
Outpatient treatment records from the El Paso VA Health Care
Clinic for the period from 1998 to 2000 show that that
veteran had been prescribed an oral hypoglycemic agent to
control his diabetes. Specifically, an outpatient record
dated June 5, 1998, shows that the veteran had been informed
to pick up a prescription for his diabetes that day.
The veteran presented for a VA eye examination in June 1998
where he reported being told he had diabetes mellitus and
said he had been prescribed medications for this disability
one week earlier. He was diagnosed as having type 2 diabetes
without retinopathy.
During an April 2003 VA examination, the veteran said he had
been given medication for diabetes at the time he was
diagnosed with the disability in 1997, but was not currently
taking any medication. He said that he was not on any
restricted diet and lost about 40 pounds following his March
2002 motorcycle accident due to having a colostomy and a
bland diet. He denied any visual problems or blurry vision.
The examiner noted that on the veteran's last examination in
February 2001, the ophthalmologist stated there was no
retinopathy of the veteran's eyes and since that time he had
not had any laser surgery or any other problems related to
visual conditions. He denied vascular, neurological or
cardiac symptoms related to his diabetes. His main complaint
regarding his diabetes was a flare-up of rashes to his legs
and feet. He denied seeking medical treatment for his
diabetes since his accident in March 2002. According to the
examination report, the veteran refused to do lab tests. He
was diagnosed as having diabetes mellitus, type 2, diet
controlled, found.
The veteran's service-connected diabetes mellitus is rated
under 38 C.F.R. § 4.119, DC 7913. Under the applicable
criteria, a 10 percent rating is warranted for diabetes
mellitus that is manageable by restricted diet only. A 20
percent rating is warranted for diabetes mellitus requiring
insulin and a restricted diet, or an oral hypoglycemic agent
and a restricted diet. A 40 percent rating requires insulin,
a restricted diet, and regulation of activities. A 60
percent rating requires insulin, a restricted diet, and
regulation of activities with episodes of ketoacidosis or
hypoglycemic reactions requiring 1 or 2 hospitalizations per
year or twice a month visits to a diabetic care provider,
plus complications that would not be compensable if
separately evaluated. A 100 percent rating requires more than
1 daily injection of insulin, a restricted diet, and
regulation of activities (avoidance of strenuous occupational
and recreational activities) with episodes of ketoacidosis or
hypoglycemic agents requiring at least 3 hospitalizations per
year or weekly visits to a diabetic care provider, plus
either progressive loss of weight and strength or
complications that would be compensable if separately
evaluated.
After reviewing the entire evidence of record and considering
such evidence in light of the regulatory criteria noted
above, the Board finds that an initial rating in excess of 10
percent for diabetes mellitus prior to June 5, 1998, is not
warranted as the criteria for the next highest level, to 20
percent, have not been met. In this regard, the evidence
shows that the veteran was initially found to have diabetes
mellitus during a VA examination in April 1998 at which time
the condition was noted to be asymptomatic. It was not until
June 5, 1998, that the veteran was prescribed an oral
hypoglycemic agent to control his diabetes, at which time his
rating was increased to 20 percent. A higher than 20 percent
rating is not warranted for the period beginning on June 5,
1998, considering that recent evidence shows that the veteran
is no longer taking a hypoglycemic agent to control his
diabetes and has never taken insulin. According to the April
2003 VA examination report, the veteran's diabetes mellitus
is being controlled by diet alone. Thus, he certainly is not
entitled to a higher than 20 percent rating for this period.
38 C.F.R. § 38 C.F.R. § 4.119, DC 7913.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the assignment of a
compensable schedular rating for the veteran's service-
connected diabetes mellitus type II with retinopathy prior to
June 5, 1998, and a higher than 20 percent rating from June
5, 1998.
Extraschedular Consideration
There is no indication that the schedular criteria are
inadequate to evaluate the veteran's service-connected
disabilities noted above. The veteran does not allege, and
the evidence does not establish, that these disabilities
cause marked interference with employment (i.e., beyond that
contemplated in the assigned evaluation), or necessitate
frequent periods of hospitalization. In fact, an August 2003
VA dermatology examination report indicates that the veteran
had been employed as a government contractor until a severe
accident in March 2002 at which time he became disabled and
unemployed. In light of the foregoing, the veteran's claim
for higher evaluations for these disabilities do not present
such an exceptional or unusual disability picture as to
render impractical the application of the regular schedular
standards. The Board is thus not required to remand this
matter to the RO for the procedural actions outlined in 38
C.F.R. § 3.321(b)(1) (2003). See Bagwell v. Brown, 9 Vet.
App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
An initial compensable rating for hypertension with
hyperlipidemia is denied.
An initial compensable rating for hemorrhoids is denied.
An initial rating in excess of 10 percent for tinea pedis
with onychomycosis of the toenails is denied.
An initial compensable rating, to 10 percent, for bursitis or
tendonitis of the right hip is granted; subject to the law
and regulations governing the payment of monetary benefits.
An initial compensable rating, to 20 percent, for bursitis or
tendonitis of the left hip is granted; subject to the law and
regulations governing the payment of monetary benefits.
An initial compensable rating, to 20 percent, for bursitis or
tendonitis of the right shoulder is granted; subject to the
law and regulations governing the payment of monetary
benefits.
An initial compensable rating, to 20 percent, for bursitis or
tendonitis of the left shoulder is granted; subject to the
law and regulations governing the payment of monetary
benefits.
An initial compensable rating, to 10 percent, for bursitis or
tendonitis of the right elbow is granted; subject to the law
and regulations governing the payment of monetary benefits.
An initial compensable rating, to 10 percent, for bursitis or
tendonitis of the left elbow is granted; subject to the law
and regulations governing the payment of monetary benefits.
An initial compensable rating, to 10 percent, for bursitis or
tendonitis of the right knee is granted; subject to the law
and regulations governing the payment of monetary benefits.
An initial compensable rating for Schamberg's purpura with
hyperpigmentation is denied.
An initial rating in excess of 20 percent for chronic
thoracolumbarsacral strain with spondylosis deformans is
denied.
An initial compensable rating for residuals of burns on the
left neck and shoulder is denied.
An initial rating in excess of 10 percent for diabetes
mellitus prior to June 5, 1998, and in excess of 20 percent
from June 5, 1998, is denied.
REMAND
Gastrointestinal Disability
The veteran's service medical records show that he was seen
in a medical clinic in February 1980 complaining of food
poisoning. His reported symptoms included diarrhea,
sweating, and stomach cramps; he had no other symptoms. He
was assessed as having gastroenteritis.
The veteran reported a history of frequent indigestion on a
January 1997 Report of Medical History. His January 1997
retirement examination report shows questionable peptic ulcer
disease and elevated liver enzymes. In March 1997, the
veteran returned to the medical clinic for a follow up of lab
work. He was not diagnosed as having a gastrointestinal
disability.
Postservice medical records show that the veteran presented
to a gastroenterology clinic in June 1998 for a VA contract
examination. An impression was given of gastroesophageal
reflux-rule out peptic ulcer disease. A flexible
sigmoidoscopy was recommended.
Medical records following the veteran's March 2002 motorcycle
accident show that he had gastrointestinal bleeding secondary
to gastric ulcers.
The veteran attended a VA general examination in April 2003;
however, the findings regarding his gastrointestinal
disability claim remain unclear. Specifically, the examiner
stated that after reviewing the veteran's claims file and VA
medical records, it was his opinion that the veteran did not
have gastroesophageal reflux disease in service and that the
inservice gastrointestinal symptoms were related to his
alcohol abuse in service. However, he also said that the
veteran had been diagnosed with gastric ulcers and
gastroesophageal reflux disease by "EGD" during his 2002
hospitalization following the motorcycle accident. He added
that the veteran most likely had non-ulcer dyspepsia that was
mostly likely due to his alcohol abuse that he had both
during and after service. He also said that the veteran's
postservice gastric ulcers were not related to
gastroesophageal reflux disease. He concluded by saying that
the veteran did not have gastroesophageal reflux disease
because he did not have the characteristic symptoms of that
condition.
It is thus not clear from the above-noted evidence whether
the veteran actually has gastroesophageal reflux disease or
peptic ulcer disease or whether these disorders or any other
gastrointestinal disorder are related to the veteran's active
duty service. Accordingly, in view of the veteran's
inservice gastrointestinal complaints and treatment, as well
as his postservice gastrointestinal problems and treatment,
further medical development is warranted in order to clarify
the veteran's present gastrointestinal diagnosis(es) and
etiology of same. See 38 U.S.C.A. § 5103A(d). In addition,
an attempt must be made to clarify whether a flexible
sigmoidoscopy was ever performed in 1998 as was recommended
by the 1998 examiner and, if so, obtain a copy of the test
results. The RO should also obtain a copy of the "EGD"
test that was reportedly conducted during the veteran's VA
hospitalization in 2002.
Left Ankle Disability
During an April 1998 VA examination, the veteran complained
of left ankle pain about once or twice a month that lasted
all day. He reported increased left ankle pain on prolonged
standing or walking and said the pain was relieved with rest.
He was not taking any medication. Although the examination
report contains a diagnosis of chronic tendonitis of the left
ankle, it is devoid of any findings in regard to the left
ankle.
Similarly, a subsequent VA examination report in April 2003
does not contain any findings and/or a diagnosis regarding
the left ankle. In fact, the only mention of the left ankle
is the veteran's report of sustaining a left ankle sprain in
1985.
Thus, the record currently contains insufficient medical
evidence in which to properly evaluate the veteran's left
ankle disability in view of the absence of any examination
findings with respect to the left ankle, including range of
motion studies. While it is unclear whether the veteran's
left ankle disability can be properly evaluated in view of
his wheelchair-bound status, the veteran should be afforded
the opportunity for an adequate examination of this
disability. See 38 U.S.C.A. § 5103b(d).
Therefore, this case is REMANDED for the following additional
actions:
1. The RO should obtain the test results
of a flexible sigmoidscopy ordered by a
VA contract examiner in June 1998 and an
"EGD"performed during the veteran's
2002 hospitalization at the William
Beaumont Army Medical Center in El Paso,
Texas. These test results should be
incorporated into the claims file.
2. The RO should schedule the veteran
for a gastroenterology examination. The
claims file must be made available to and
be reviewed by the examiner in
conjunction with the examination. All
indicated special tests should be
completed. The examiner's report should
set forth in detail all signs and
findings relevant to a gastrointerology
condition.
The examiner should be requested to
provide an opinion as to whether it is at
least as likely as not that any current
gastroenterological diagnosis(es) is(are)
related to the veteran's period of
service. The opinion should be supported
by adequate rationale.
3. The veteran should then be scheduled
for an appropriate VA examination to
ascertain the current severity of his
service-connected left ankle disability.
The claims file must be made available to
the examiner for review in connection
with this examination. All examination
findings should be clearly reported to
allow for evaluation under applicable VA
rating criteria. The examiner should
also indicate whether, during the
examination, there is objective evidence
of pain on motion, weakness, excess
fatigability, and/or in coordination
associated with the left ankle. If pain
on motion is indicated, the examiner
should note at which point pain begins.
In addition, after considering the
veteran's documented medical history and
assertions, the physician should indicate
whether, and to what extent, the veteran
experiences likely additional functional
loss due to pain and/or any of the other
symptoms noted above during flare-ups
and/or with repeated use; to the extent
possible, the examiner should also
express such functional loss in terms of
additional degrees of limited motion.
4. The RO must ensure that all notice
and duty to assist provisions set forth
in the VCAA have been complied with. The
RO should ensure that the requested
examination and medical opinion have been
provided. The RO should also ensure that
the gastrointestinal test reports noted
above, if performed, are on file.
5. Upon completion of all requested
development, the RO should again consider
the veteran's claims for service
connection for a gastrointestinal
disorder, to include gastroesophageal
reflux disease, and an increased initial
rating for service-connected tendonitis
of the left ankle. If any action remains
adverse to the veteran, he and his
accredited representative should be
furnished a supplemental statement of the
case and they should be given an
opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2